U.S. DEPARTMENT OF LABOR and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12, AFL-CIO

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

WASHINGTON, D.C.
20424-0001

MEMORANDUM DATE: February 17,
2006

TO: The Federal Labor Relations
Authority

FROM: RICHARD A. PEARSON

Administrative Law Judge

SUBJECT: U.S. DEPARTMENT OF
LABOR

Respondent

and Case No.
WA-CA-04-0540

AMERICAN FEDERATION OF
GOVERNMENT

EMPLOYEES, LOCAL 12,
AFL-CIO

Charging Party

Pursuant to section 2423.34(b) of
the Rules and Regulations, 5 C.F.R. § 2423.34(b), I am hereby
transferring the above case to the Authority. Enclosed are copies
of my Decision, the service sheet, and the transmittal form sent to
the parties. Also enclosed are the transcripts, exhibits and any
briefs filed by the parties.

Enclosures

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

WASHINGTON, D.C.
20424-0001

U.S. DEPARTMENT OF LABOR

Respondent

and

AMERICAN FEDERATION OF
GOVERNMENT

EMPLOYEES, LOCAL 12,
AFL-CIO

Charging
Party

Case No. WA-CA-04-0540

NOTICE OF TRANSMITTAL OF
DECISION

The above-entitled case having been
heard before the undersigned Administrative Law Judge pursuant to
the Statute and the Rules and Regulations of the Authority, the
undersigned herein serves his Decision, a copy of which is attached
hereto, on all parties to the proceeding on this date and this case
is hereby transferred to the Federal Labor Relations Authority
pursuant to 5 C.F.R. § 2423.34(b).

PLEASE BE ADVISED that the filing
of exceptions to the attached Decision is governed by 5 C.F.R. §§
2423.40-2423.41, 2429.12, 2429.21-2429.22, 2429.24-2429.25, and
2429.27.

Any such exceptions must be filed
on or beforeMARCH 20,
2006, and addressed to:

Federal Labor Relations
Authority

Office of Case Control

1400 K Street, NW,
2ndFloor

Washington, DC 20005

_______________________________

RICHARD A. PEARSON

Administrative Law Judge

Dated: February 17, 2006

Washington, DC

OALJ 06-06

FEDERAL LABOR RELATIONS
AUTHORITY

Office of Administrative Law
Judges

Washington, D.C.

U.S. DEPARTMENT OF LABOR

Respondent

and

AMERICAN FEDERATION OF
GOVERNMENT

EMPLOYEES, LOCAL 12,
AFL-CIO

Charging
Party

Case No. WA-CA-04-0540

Thomas F. Bianco, Esquire

H. Paul Vali, Esquire

For the General
Counsel

M. Yusuf M. Mohamed,
Esquire

Joseph Blake, Esquire

For the Respondent

Before: RICHARD A.
PEARSON

Administrative Law
Judge

DECISION

Statement of the Case

This is an unfair labor practice
proceeding under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. § 7101-7135 (the Statute), and the Rules and
Regulations of the Federal Labor Relations Authority (the
Authority), 5 C.F.R. part 2423 (2005).

Based on an unfair labor practice
charge filed by the American Federation of Government Employees,
Local 12,

AFL-CIO (Union or Charging Party), a
Complaint and Notice of Hearing was issued by the Regional Director
of the Washington Regional Office of the Authority. The Complaint
alleges that the U.S. Department of Labor (the Agency or
Respondent) violated section 7116(a)(1) and (8) of the Statute by
failing to comply with an arbitration award issued on May 21, 2003,
as required by sections 7121 and 7122 of the Statute.
Specifically, the Complaint alleges that the Respondent has failed
to consider positions in OSHA for purposes of promoting a
bargaining unit employee pursuant to the Arbitration Award and has
failed to provide the same employee any back pay pursuant to the
Award. The Respondent filed an Answer admitting in part and
denying in part the allegations set forth in the
Complaint.

A hearing was held in Washington,
D.C., on October 28, 2004, at which time all parties were afforded
full opportunity to be represented, to be heard, to examine and
cross-examine witnesses, to introduce evidence and to argue orally.
Both the General Counsel and the Respondent filed timely
post-hearing briefs which have been fully considered.

Based upon the entire record,
including my observation of the witnesses and their demeanor, I
make the following findings of fact, conclusions and
recommendations.

Findings of Fact

The U.S. Department of Labor is an
agency under 5 U.S.C. § 7103(a)(3). G.C. Exs. 2 and 3. The Mine
Safety and Health Administration (MSHA) and Occupational Safety and
Health Administration (OSHA) are two separate components within the
Respondent. The American Federation of Government Employees, Local
12, AFL-CIO (the Union or Charging Party) is a labor organization
under 5 U.S.C. § 7103(a)(4) and the exclusive representative of a
unit of employees appropriate for collective bargaining at the
Respondent. G.C. Exs. 2 and 3. At all times material to this
case, David C. Hershfield (Hershfield or the Grievant) was an
employee of the Respondent, occupied a position as a GS-110-13
Economist in OSHA, and was a member of the bargaining unit
represented by the Union.

This dispute involving Mr.
Hershfield first arose in February of 1998, when he applied for a
position as GS-110-14 Economist in MSHA. When he was not selected,
he filed a grievance concerning the action, and the Union and
Agency reached a Settlement Agreement on February 5, 2001. The
Settlement Agreement provided that Hershfield "will be given
priority consideration for the next Economist GS-110-14 position in
the national office of the Mine Safety and Health Administration."
G.C. Ex. 6, p. 4. Just such a position was advertised in May 2001;
Hershfield applied for the position but was not given priority
consideration, and he was not selected for it. The Union filed
another grievance, and this ultimately was submitted to
arbitration.

On May 21, 2003, Arbitrator S.R.
Butler issued an "Opinion And Award In The Matter Of The
Arbitration Between: U.S. Department of Labor and the American
Federation of Government Employees, Local 12." The Award
states:

The Agency violated the applicable
Settlement Agreement and Article 16 of the Collective Bargaining
Agreement when it did not select the Grievant, David Hershfield,
for a GS-110-14 position, Vacancy Announcement MSHA-01-043, on or
about June 1, 2001.

The remedy shall be as
follows:

1. The Agency is directed to
promote the Grievant retroactively to June 1, 2001 to the next
appropriate GS-14 position available in MSHA, OSHA or any other
Department of Labor agency agreed upon by the Parties.

2. The Agency is directed to make
the Grievant whole retroactive to June 1, 2001 pursuant to the Back
Pay Act, 5 U.S.C. 5596.

3. In the event of a dispute over
the implementation of the remedy in this matter, the Arbitrator
shall retain jurisdiction over any said dispute for a period of
ninety (90) calendar days following the date of this
Award.

G.C. Ex. 6, p. 15.

The Respondent filed exceptions to
the Award, and on January 8, 2004, the Federal Labor Relations
Authority issued its decision inUnited
States Department of Labor, Washington, D.C. and American
Federation of Government Employees, Local 12,59 FLRA 560 (2004) (DOL), in which it denied the
Respondent's exceptions. Specifically, the Authority held that the
Award did not violate the Agency's right to make selections under
section 7106(a)(2)(C) of the Statute; that the Award did not
violate the Back Pay Act; and that the Arbitrator did not exceed
her authority by ordering the Agency to promote Hershfield to a
position in OSHA or MSHA. The Award became final upon the
Authority's decision.

Eleanor Lauderdale, the Head
Steward for Local 12, subsequently stayed in contact with the
Agency in order to see to it that Hershfield was promoted to a
GS-14 position. Lauderdale mainly communicated with Joseph Blake,
the Human Resources Specialist in the Labor Management Branch who
is primarily responsible for OSHA. Tr. 28, 33, 34. Lauderdale
testified that she asked several times what the Respondent was
doing in order to abide by the Arbitration Award. She was
generally told that there were no positions available, so they had
not looked for any GS-14 positions. Tr. 32-33. Blake also told
her that they were only going to look for GS-14 positions in MSHA,
since that agency had been the subject of the arbitration. Tr. 40.
Lauderdale disputed Blake's position that the Respondent was only
obligated to look in MSHA for a GS-14 position. Sometime in the
summer of 2004, Lauderdale sent an e-mail to Blake regarding a
vacancy for a GS-14 economist position in ASP, which is an
organization within DOL, but separate from both MSHA and OSHA. Tr.
40-43. She did not recall ever receiving a response from Blake or
anyone else in DOL. Tr. 43.

Alex Bastani, Executive Vice
President for Local 12, was also in contact with DOL regarding the
Arbitration Award. Tr. 35, 38. On April 1, 2004, Bastani sent an
e-mail to Carol Qualls and Sandra Keppley of the Office of the
Assistant Secretary for Administration and Management (OASAM),
stating that the Union had received no information from the Agency
since the Arbitration decision was upheld by the Authority. The
e-mail further stated, "We would like to know the status of 1) the
back pay from the time of the selection at the GS-14 level and 2)
has the Department found an appropriate GS-14 Economist position
for Dr. Hershfield." G.C. Ex. 1, p. 4. Bastani renewed his
request by e-mail dated April 28, 2004. Id. On May 13, 2004, Bastani
received a letter from Blake, which stated:

This responds to your e-mail
inquired [sic] dated April 10, 2004, in which you requested the
status of managements efforts to place Mr. Hershfield in a GS-14
position and process back pay. Currently there are no GS-14
positions open in MSHA for which Mr. Hershfield
qualifies.

With respect to back pay,
Arbitrator Butler's award clearly directs the Agency to "...make
the Grievant whole retroactive to June 1, 2001 pursuant to the Back
Pay Act, 5 U.S.C. 5596." Accordingly, back pay will be computed
from June 1, 2001 once Mr. Hershfield is placed in a GS-14
position.

G.C. Ex. 1, p. 3; Tr. 35.

The Union filed the unfair labor
practice charge in this case on June 25, 2004. At the time that
post-hearing briefs were filed, the Grievant had still not been
placed in a GS-14 position, and he had not been paid any back pay
under the Arbitration Award.

Rhonda Long, Supervisory Human
Resources Specialist at MSHA, testified that MSHA has not hired any
economists or posted any vacancy announcements between January 8,
2004 and the date of the hearing. Tr. 52-53. In September 2004,
Long was told that MSHA was seeking to fill a vacancy as
Supervisory Management Analyst (Impact Analyst), GS-343-14. She
reviewed an application on file for the Grievant in order to
determine whether he was qualified for the position. Resp. Ex. 1,
Tr. 55-56. On October 4, 2004, she offered the position to Mr.
Hershfield, but he declined it. Resp. Ex. 2, 3.

Issues

Whether the Respondent violated
section 7116(a)(1) and (8) of the Statute by failing to comply with
the Arbitration Award issued on May 21, 2003, and finalized on
January 8, 2004, as required by section 7122(b) of the Statute, by
refusing to consider the Grievant for positions in OSHA and by
refusing to pay him back pay pursuant to the Award.

Positions of the Parties

General Counsel

The General Counsel asserts that,
at a minimum, the Award required the Department of Labor to search
for an appropriate GS-14 position for the Grievant in both MSHA and
OSHA. The Arbitrator knew that Hershfield was an OSHA employee and
had twice been wrongfully denied promotion in MSHA. It was against
this backdrop that the Arbitrator, in her remedy, singled out and
distinguished both MSHA and OSHA for specific attention by the
Respondent. According to the GC, the evidence shows, and the
Respondent does not dispute, that it looked only in MSHA for an
appropriate position. Even if the Agency learned subsequently that
no appropriate positions had been vacant in OSHA between the date
the Award became final and the date the Union filed its ULP charge,
the Agency's failure to look in OSHA for many months constituted a
refusal to comply with the Award. Further, the GC urges that the
Award is undermined when, as occurred here, the Union and the
Grievant are put in the position of having to repeatedly ask the
Agency if anything has been done to find a position. The
undisputed evidence is that the Respondent did not bother to look
in OSHA for a position for the Grievant, despite the direct
requirement that it do so, and this violated not only the Award but
also the Statute.

The General Counsel further asserts
that the Agency's ongoing failure to pay the Grievant the back pay
ordered by the Arbitrator constitutes an additional violation of
the Statute. The Agency does not deny that it has refused to pay
back pay to this date, but contends that it is not legally
permitted to do so until the Grievant has actually been promoted.
The GC asserts that the two remedies ordered by the Arbitrator are
separate and distinct, and there is no indication that the
Arbitrator intended to make the payment of back pay dependent on
the Grievant's ultimate promotion. If the Respondent wished to
object to this construction of the Award, it had an obligation to
do so in its exceptions to the Authority; having not done so in
that forum, the Respondent may not now raise that objection or
argument in the instant case. Both the Authority and the courts
refuse to allow a party to collaterally attack a final and binding
arbitration award as part of a ULP proceeding for refusing to
comply with the award. See U.S.
Department of Transportation, Federal Aviation Administration and
National Air Traffic Controllers' Association, 54 FLRA 480, 483 (1998) (FAA);see
alsoUnited States
Marshals Service v. FLRA,778 F.2d 1432,
1436-7 (9thCir.
1983).

The General Counsel further argues
that neither 5 C.F.R. § 550.804 nor FPM 296-33, Guide to Processing
Personnel Actions, supports the Agency's contention that it is
prohibited from giving the Grievant any back pay until he is
promoted. The Arbitrator found that, but for the Agency's
violation of the Settlement Agreement and the Collective Bargaining
Agreement, Hershfield would have been promoted to the GS-14
position he applied for in June 2001; therefore, an appropriate
authority has made an administrative determination that corrective
personnel action is warranted, as required by 5 C.F.R. section
550.804. FPM 296-33 contains instructions on how to "prepare
personnel actions" (Ch. 1, Sec. 1-2). This guide also contemplates
"unusual cases" and instructs agencies to contact OPM's Center for
HR Systems Requirements and Strategies about such cases. The
Respondent offered no evidence that it sought or received OPM's
help with the circumstances of the instant case, or that OPM
supported its legal position. The GC concludes that the Agency's
position, if upheld, would totally undermine the integrity of
arbitration awards, as it would allow agencies to avoid compliance
altogether by delaying indefinitely.

After the complaint was issued in
this matter, the Respondent attempted to promote the Grievant to a
Supervisory Management Analyst, GS-343-14, position in MSHA. The
GC argues that the belatedly offered supervisory position was not
an "appropriate" position as contemplated by the Award. The
Respondent, faced with defending against a ULP complaint, tried to
force the Grievant into a supervisory role that he had not sought,
in which he would have responsibilities for which he himself
acknowledged that he is unqualified, with the likelihood that he
could lose his employment if he fails. Under these circumstances,
the offered position was not an appropriate one under the
Arbitration Award, and the Respondent has not satisfied its
obligations under the Award.

To remedy the unfair labor
practices, the General Counsel seeks an order requiring the
Respondent to (1) provide Mr. Hershfield with back pay from June 1,
2001, to the date of the final order in this case, with the
remainder of back pay due to be paid upon his promotion to an
appropriate position; (2) continue to search for an appropriate
GS-14 position in both MSHA and OSHA; (3) provide the Grievant and
the Union, on a weekly basis, a listing of all vacant GS-14
positions within MSHA and OSHA for which the Grievant is qualified,
together with an explanation for the failure to promote him; and
(4) post an appropriate notice signed by the Secretary of Labor.
The GC asserts that the immediate back pay is necessary both to
comply with the Award and to deter further delayed compliance by
the Respondent. It also argues that the Union and the Grievant
need ongoing information from the Agency about job vacancies to
facilitate the Grievant's speedy promotion to an appropriate GS-14
position.

Respondent

The Respondent first argues that
because the Complaint alleges that David Lauriski (then the
Assistant Secretary of Labor for MSHA) or his agent committed the
alleged unfair labor practices, the case against the Respondent
should be limited to violations by MSHA officials, and not by
officials of OSHA or other DOL components. Since the Grievant is
employed by OSHA, and the GC attacks the Respondent's failure to
look for a position for Hershfield in OSHA or pay him back pay,
Respondent asserts that the GC has not shown that any MSHA official
committed any unfair labor practice, and the Complaint must
therefore be dismissed. According to the Respondent, neither
Lauriski nor anyone under his supervision had authority to consider
Hershfield for a position at OSHA or pay him back pay. The GC
never amended the Complaint, even though it was aware of this issue
(Tr. 48-49), and the Respondent argues that the GC is therefore
bound by the terms of the Complaint. Citing Judge Oliver's comment
that "I will hold the General Counsel responsible for the specific
content of his complaint[,]" Respondent urges that actions by
officials outside of MSHA are beyond the scope of this case.
See United States Immigration and
Naturalization Service, Washington, D.C.,
56 FLRA 721, 731 (2000).

The Respondent next asserts that it
is not required to include OSHA in its search for an appropriate
position for the Grievant in order to comply with the Arbitration
Award. Citing the language of the Award, it was ordered to promote
the Grievant "to the next appropriate GS-14 position available in
MSHA, OSHA or any other Department of Labor agency agreed upon by
the Parties." The Respondent argues that this language is most
reasonably read to require the placement of the Grievant in a
position in OSHA or MSHA, and that placement in any other component
of DOL would require the agreement of the parties. Since the
parties' mutual agreement is only necessary if Hershfield is placed
in a third agency, the Respondent argues that it retained the
discretion to place him in either MSHA or OSHA. The Respondent
rejects the General Counsel's interpretation that the Respondent
was required to consider positions in OSHA, and it argues that its
interpretation of the Award is reasonable and therefore must stand.
Respondent citesDepartment of the Air
Force, Warner Robins Air Logistics Center, Robins Air Force Base,
Georgia, 52 FLRA 225, 231 (1996) ("If the
meaning of a particular agreement term is unclear and a party acts
in accordance with a reasonable interpretation of that term, that
action will not constitute a clear and patent breach of the terms
of the agreement.") The Respondent notes that the Union did not
seek clarification of the Award, even though the Arbitrator
indicated that she would retain jurisdiction over the case to
resolve any disputes over its implementation. G.C. Ex. 6 at 15.
Cf., Headquarters, U.S. Army
Communications Command, et al., Ft. Huachuca, Arizona, and American
Federation of Government Employees, Local 1662, 2 FLRA 786, 789 (1980).

Further, even if the Award required
the Respondent to consider positions within OSHA, such a search
would have been futile. An MSHA human resources official testified
that there were no vacancies filled for such positions within OSHA
between the date the Award became final and the date of the
hearing. Tr. 119-21. OSHA had seven GS-14 openings during this
time frame: they included one health scientist, one electrical
engineer, one information technology specialist, two human
relations specialists, and two program analysts. Tr. 119. The
Grievant would not have been minimally qualified for the first five
positions; of the two program analyst positions, one was not
competitively filled and Hershfield would not have minimally
qualified for the other. Tr. 119-20. Since there is no
conceivable scenario under which the Grievant would have been
awarded any of these seven positions at OSHA, a search there would
have been futile. The evidence was not disputed by the
GC.

The Respondent asserts that MSHA
has consistently looked to see if it had a vacancy suitable for the
Grievant. Tr. 54, 72. After becoming aware of the Supervisory
Management Analyst position, Ms. Long reviewed Hershfield's
qualifications, based on application materials he had submitted for
a previous vacancy. Tr. 58-59; Resp. Ex. 4. She concluded that
the Grievant was qualified for the supervisory position, and he was
then offered the position. Although the Grievant rejected the
position, claiming that he was not qualified for it, the Respondent
asserts that the documents he submitted to MSHA show that he was
qualified.

The Grievant has never been
employed by MSHA and has rejected the position that he was offered
by MSHA. Thus, Respondent argues that the Assistant Secretary, Mr.
Lauriski, had no logical or legal obligation to pay the Grievant
any back pay, contrary to the GC's narrowly pleaded allegations.
Had the Grievant accepted the position that was offered to him, he
would have received the back pay that was due to him. The
Respondent therefore argues that it has fulfilled its obligations
under the Arbitration Award.

The Respondent further argues that
there is no provision of the Back Pay Act that permits it to pay
the Grievant back pay under the facts of this case. Cases that
have reviewed back pay issues under the Back Pay Act found that no
monies are due to an employee who did not actually suffer a
"withdrawal or reduction" in pay, as required by that Act. 5
U.S.C. § 5996(b)(1). This issue is a sovereign immunity question,
and courts have required evidence of a waiver of such immunity by
Congress before imposing monetary damages. See Department of the Army v. FLRA,
56 F.3d 273 (D.C. Cir. 1995).

According to the Respondent, the
seminal case on this issue isU.S. v.
Testan, 424 U.S. 392 (1976). Though stated
there in the context of a classification case, the applicable rule
is that "the federal employee is entitled to receive only the
salary of the position to which he was appointed, even though he
may have performed duties of another position or claims that he
should have been placed in a higher grade." 424 U.S. at 406.
There is no evidence in the instant case or in the arbitrator's
decision that the Grievant was demoted, fired or had any portion of
his pay withheld by the Agency. However, the back pay that might
be due to the Grievant would have resulted from the failure of
Respondent to promote the Grievant as required by the Award, a
situation that is not compensable under theTestandecision. In a 1978 decision,
the Third Circuit agreed and wrote, "the unwarranted failure timely
to promote plaintiff in accordance with Army regulations, though a
wrongful act, is not the type of personnel action calling for back
pay under the Back Pay Act, for the action has not caused plaintiff
to suffer any reduction in grade but has only delayed his
advancement to a higher level." Donovan
V. U.S., 580 F.2d 1203 (3rd Cir.
1978)

InBrown
v. Secretary of the Army, 918 F.2d 214
(D.C. Cir. 1990), the court wrote that "Back Pay Act relief is
available only to compensate for a reduction in pay or a decrease
in grade." Id. at
218. It further added that unless an employee had a "virtually
automatic" right to a position, no relief was available under the
Act. Id.at 220.
Though the GC might argue that the promotion at issue here was
automatic, further language in the decision negates such reasoning.
Since the grievance was for a particular vacancy announcement for
which the Grievant should have been given priority consideration,
the agency "could have decided to eliminate, or not to create, the
sought-after position." Id. at 220. Because in this case,
the Respondent could choose to never post another vacancy
announcement or make any further hires, then nothing would have
made the Grievant's entitlement to the position automatic in any
way. Thus, Respondent asserts the Back Pay Act offers no
relief.

The Back Pay Act states that back
pay is to be paid

"on correction of the personnel
action." 5 U.S.C. § 5596(b)(1)(a). Thus, if the wrongful
personnel action is the denial of a particular position, only upon
its correction - by appointing the employee to the correct position
- is he entitled to any monies due. See also 5 C.F.R. § 550.805
(2005). Although the Award specified a beginning date for the back
pay that might be due, it gave no ending date for that period, thus
leaving the Respondent's personnel staff without a basis of
calculating the payment due to the Grievant. If the Grievant had
accepted the position offered to him, the Agency could have
processed an SF-50 to effectuate the promotion and set an end date
for the back pay, but his rejection of the offered position
precluded the Agency from calculating or paying any back pay.
Violet Parker, a human resources employee of the Respondent,
testified that there is no method by which an employee can be paid
back pay without a personnel action form, or SF-50, being issued.
Tr. 129. Respondent could not simply write the Grievant a lump sum
check for back pay, since (among other things) this would not
result in his receiving proper retirement credit for his position,
because there would be no SF-50 generated showing the position for
which the Grievant was promoted. Tr. 133.

Parker's testimony was not rebutted
in any way and stands as the only evidence in the record of the
manner by which back pay payments may be made to the Grievant.
Since the Respondent complied with the Award and could have paid
the Grievant the back pay due to him, had he accepted the offered
position, his actions prevented the Respondent from complying with
this portion of the Award.

Respondent further argues that any
obligation it had to pay the Grievant back pay was terminated by
his failure to mitigate damages. "Employees entitled to relief
under the Back Pay Act have a duty to mitigate damages in cases
brought under the Act." American
Federation of Government Employees, Local 12 and United States
Department of Labor, 32 FLRA 771, 775
(1988). The NLRB has adopted a similar rule;see Black Magic Resources, 317 NLRB
721 (1995). The Grievant's rejection of the offered position
served to frustrate the Agency's attempt to comply with the
Award.

Had the Grievant accepted the
offered position, the Respondent argues that he would have been
able to immediately receive his back pay. He then could have
grieved the appropriateness of the position. If the position was
not deemed "appropriate" under the Award, the Grievant would have
continued in the new position until he was appointed to another
position. If the position was found to be appropriate, he would
have been paid his back pay and continued in the offered position.
In either case, however, he would have mitigated his damages and
received all of the benefits of a retroactive promotion, including
the proper crediting of his retirement benefits.

By offering Hershfield the position
as Supervisory Management Analyst in October 2004, the Respondent
argues that it complied with the Award. It submits that Ms. Long's
testimony established that the Grievant was qualified for the
position, based on the Grievant's own application materials. Thus,
if the Grievant is owed any back pay, it is limited to the period
between June 1, 2001 and October 17, 2004.

Analysis and Conclusions

1. Pleading Issue

The Complaint in this case was
issued against the Department of Labor, which encompasses both MSHA
and OSHA. David Lauriski, the Assistant Secretary of Labor for
MSHA, was the only named supervisor, management official or agent
named in the Complaint. (G.C. Ex. 2, ¶¶ 6-8). Paragraph 13
alleges that "Since January 8, 2004, the Respondent, through
Lauriski or his agent, has failed to consider positions in OSHA for
purposes of promoting Hershfield pursuant to the Award." The
Respondent correctly identified a problem with regard to the
pleading, i.e., that no one from authority within OSHA is alleged
in the Complaint and there is no evidence in the record to show
that Lauriski or his agent had any authority over OSHA. However,
the gist of the case, that the Department of Labor did not comply
with the Arbitration Award, is apparent from the pleadings and the
evidence presented at the hearing.

The Authority has long held that it
does not judge a complaint on rigid pleading requirements.
OLAM Southwest Air Defense Sector (TAC),
Point Arena Air Force Station, Point Arena, California,51 FLRA 797, 807-08 (1996). Rather, the Authority
will consider matters not specified in the complaint, if those
matters are fully and fairly litigated. The test of full and fair
litigation is "whether the employer knew what conduct was in issue
and had a fair opportunity to present his defense."
U.S. Department of Labor, Washington,
D.C., 51 FLRA 462, 467 (1995). "[F]airness
requires that any doubts about due process be resolved in favor of
the respondent." Bureau of Prisons,
Office of Internal Affairs, Washington, D.C. and Phoenix,
Arizona, 52 FLRA 421, 431. The Authority
has recently stated that these due process principles are the
appropriate framework to resolve questions concerning the identity
of a respondent. United States Department
of Justice, Federal Bureau of Prisons, Federal Correctional
Institution, Forrest City, Arkansas, 57
FLRA 787, 788 (2002);see also United
States Department of the Air Force, Headquarters,
96thAir Base
Wing, Eglin Air Force Base, Florida,58
FLRA 626, 628-29 (2003).

The record here amply demonstrates
that the Respondent fully understood that the General Counsel was
alleging unlawful acts by officials within both MSHA and OSHA, and
it fully defended the actions of all such officials. The
Respondent was not harmed in any way by the technical defect in the
Complaint. Moreover, since the Complaint was brought against the
Department of Labor as a whole, the allegations against MSHA
officials are attributable as well to DOL. Resp. Ex. 3, as well as
Ms. Lauderdale's testimony, make it clear that Joseph Blake, an
official within the Office of the Assistant Secretary for
Administration and Management, was involved in limiting the
Agency's search for a position for the Grievant to positions within
MSHA. Since the Respondent was well aware of the allegations
against it and those matters were fully and fairly litigated, this
portion of the Respondent's defense is rejected.

2. Compliance with the Arbitration
Award

The Arbitration Award directed the
Respondent1855729078to promote Mr. Hershfield ". . . retroactively to June 1, 2001
to the next appropriate GS-14 position available in MSHA, OSHA or
any other Department of Labor agency agreed upon by the Parties."
G.C. Ex. 6, p. 15. The Respondent admits that it did not look in
OSHA for any GS-14 positions for the Grievant, but only considered
positions within MSHA. One of the exceptions to the Arbitration
Award filed by the Respondent with the Authority argued that the
Arbitrator exceeded her authority by including OSHA in her ordered
relief. There, the Agency argued that "MSHA was the only agency
involved in this matter[,]" and it challenged the Arbitrator's
ability to order it to promote the Grievant to a position in OSHA.
59 FLRA at 563. The Authority found that the Arbitrator had not
disregarded any specific limitations on her authority, noting that
the disputed position was in MSHA, that the grievant worked for
OSHA at the time, and that both activities are part of the
Department of Labor. DOL,59 FLRA at 563.

After the Award became final,
Respondent's officials continued to assert to the Union that it was
only obligated to look for a position for Hershfield within MSHA,
and it continued to argue this position at the hearing. As
summarized above, Respondent continues to assert that the Award is
somehow vague and allows Respondent the discretion as to whether or
not to look for a position in OSHA. It is apparent, therefore,
that the Respondent is pursuing the same basic legal issues that it
previously raised in its exceptions to the Authority. Under
section 7122(b) of the Statute, an agency must take the action
required by an arbitrator's award when that award becomes final and
binding. See U.S. Department of Health
and Human Services, Health Care Financing
Administration, 35 FLRA 491, 494-95 (1990),
and cases cited therein. As a result, both the Authority and the
courts refuse to allow an agency respondent to collaterally attack
a final and binding arbitration award as part of an unfair labor
practice proceeding for refusing to comply with the award.
See U.S. Department of Justice v.
FLRA, 792 F.2d 25 (2d Cir. 1986),
enf'gU.S. Department of Justice and
Department of Justice, Bureau of Prisons (Washington, D.C.) and
Federal Correctional Institution (Danbury,
Connecticut), 20 FLRA 39 (1985);United States Marshals Service v.
FLRA, 778 F.2d 1432 (9th Cir. 1985),enf'g United States Marshals
Service, 13 FLRA 351 (1983);Department of the Air Force v.
FLRA, 775 F.2d 727, 733 (6th Cir.
1985),aff'g United States Air Force, Air
Force Logistics Command, Wright-Patterson Air Force Base,
Ohio, 15 FLRA 151 (1984).
See also FAA,supra,54
FLRA 480.

Therefore, since the Respondent has
admitted that it failed to search or consider appropriate GS-14
vacancies in OSHA, it has refused to comply with the Arbitration
Award in this respect, in violation of the Statute. The Award
itself is quite clear that the Agency must look for a position for
the Grievant in both OSHA and MSHA, and (contrary to the Agency's
claim) there is nothing discretionary about that portion of the
Award. The Authority reiterated this in its decision on
exceptions. Further, I find that Respondent's attempts to excuse
its conduct, by asserting that there were not actually any
appropriate available GS-14 positions in OSHA, are both
self-serving and insufficient. The evidence clearly shows that
Agency officials gave no consideration to the Grievant for OSHA
positions until after the complaint was issued and then only in the
context of rejecting them as possible appropriate
positions.666689444
Agency officials clearly communicated to the Union for several
months after the Arbitration Award became final that it was flatly
ignoring at least one aspect of the Award, and this constituted an
unfair labor practice.

3. The Appropriateness of the
Position Offered to the Grievant

The complaint was issued in this
matter on September 16, 2004. At roughly the same time, a job as
Supervisory Management Analyst - Impact Analyst, GS-343-14, became
available in MSHA. In her position as Supervisory Human Resources
Specialist for MSHA, Rhonda Long reviewed an application on file
for Mr. Hershfield that he had submitted for a previous, unrelated
position. Long, without consulting either the Union or the
Grievant, determined that he was qualified for the position. The
Respondent asserts that this was an "appropriate" position and that
it therefore complied with the Award; accordingly, it argues that
any back pay liability it had, terminated when the Grievant
declined the job. As stated above, the General Counsel asserts
that this position was not appropriate under the Award, that the
Agency has a continuing obligation to promote the Grievant, and
that its back pay liability continues to mount.

The Supervisory Management Analyst
(Impact Analyst) position in question ". . . manages a staff that
implements MSHA's program that ensures compliance with the
Paperwork Reduction Act, OMB circular A-119, federal record
retention requirements of the National Archives and Records
Administration, and Privacy Act systems of records requirements."
Resp. Ex. 1. The "knowledge and skills" required for the position
included: expert knowledge of Federal laws, regulations, policies
and procedures pursuant to the Paperwork Reduction Act (PRA);
ability to conduct or review analyses of the economic burden of
information collection, recordkeeping, or reporting requirements
for submission to the Office of Management and Budget; general
knowledge of the Privacy Act sufficient to analyze the impact on
proposed or revised individual privacy of requirements subject of
the PRA; knowledge of management and organizational principles and
practices sufficient to direct the work of an organizational unit;
broad knowledge of data resources, data flow, and systems
interactions of automated systems; ability to translate user
requirements into technical specifications for contract development
and to evaluate vendor proposals for technical merit and
feasibility; and skill in managing a program having far-reaching
effects down to the lowest field office. Id.

With regard to supervisory
abilities, candidates for this position must have demonstrated in
their experience that they possess, or have the potential to
develop, the qualities of successful supervision. Long determined
that Hershfield directed other economists in their research during
a 90-day assignment as a Supervisory Program Analyst in 1991. She
also noted that he was a retired Lt. Colonel in the U.S. Army
Reserve, and she concluded that the combination of these
experiences gave him the ability to supervise a staff of fully
qualified journeyman management analysts. Resp. Ex. 4.

Long determined that the Grievant
was minimally qualified for the position, based on the following
areas of competency: (1) his supervisory experience; (2) his "broad
knowledge of data resources, data flow, and systems interactions of
automated system"; (3) his ability to translate user requirements
into technical specifications for contract development and to
evaluate a number of proposals for technical merit and feasibility;
(4) his expert knowledge of the PRA and Federal laws and
regulations applicable to the PRA (such as MSHA regulations and the
Privacy Act); his knowledge of the Clinger-Cohen Act, the Freedom
of Information Act, OMB Circular A-130, developing budgets or
preparing performance evaluations; (6) his ability to manage a
program "down to the lowest field office at MSHA"; (7) his
understanding of criteria used in evaluating whether applications
or applicants meet minimum requirements; and (8) his contracting
expertise.1635001618 Tr. 65-68, 81, 85-86.

Mr. Hershfield, however, denied
that he met the minimal qualifications for the supervisory analyst
position. He testified that (1) he had never had any subordinates
and had never supervised anyone while in the Army Reserves; (2) he
knows nothing about data resources, data flow, and systems
interactions of automated systems, and his experience with
interactive computer systems was limited to doing user-testing; (3)
he has no ability to translate user requirements into technical
specifications for contract development or to evaluate a number of
proposals for technical merit and feasibility; (4) he has no expert
knowledge of the PRA or other applicable laws or regulations, and
that any PRA-related work in his current job was given to a PRA
expert. Further, he said that he knows nothing about the
Clinger-Cohen Act, the Freedom of Information Act, OMB Circular
A-130, developing budgets or preparing performance evaluations; he
has no experience in managing a program; he has no experience in
evaluating whether applications or applicants meet minimum
requirements; and his contracting expertise was limited to
reviewing drafts, correcting grammatical errors, errors in
economics, reviewing invoices, ensuring compliance and technical
qualifications of contractor agents. (Tr. 144-147, 149, 150-154,
160-70, 173, 174-75, 179-184)

In comparing the testimony of the
witnesses in this regard, it appears to me that Long over-inflated
and Hershfield under-inflated his experience and abilities.
Nonetheless, it is clear that Ms. Long made many incorrect
assumptions when she initially reviewed an old job application from
the Grievant's file, without consulting with the Grievant himself,
and that Hershfield lacked many of the basic requirements of the
supervisory position. The management analyst position is in an
entirely different job series than the economist job the Grievant
had long performed, and there is no basis in the record to conclude
that Hershfield had sufficient experience with statutes such as the
PRA, FOIA, the Privacy Act and the Clinger-Cohen Act, or technical
regulations such as OMB Circular A-130, to supervise the work of
experienced management analysts on these subjects. Given the
Grievant's lack of any meaningful supervisory experience and the
lack of knowledge of the PRA and other legislation specific to the
position, I find that the Supervisory Management Analyst position
offered to the Grievant in September 2004 was not an "appropriate
position" under the Arbitration Award.

I am also mindful of the fact that
this was a supervisory position, in which the Grievant would not
have many of the protections of the Statute, and he would be
subject to a probationary period, with the possibility of removal
from the position. It would be unfair to require the Grievant to
accept such a risky position, for which he appears less than
minimally qualified, as a remedy for the Agency's previous failure,
on two separate occasions, to promote him to a GS-14 economist
position.1010816918

Since the position offered to the
Grievant in September 2004 was not an "appropriate position" under
the Award, it did not relieve the Respondent of its obligations
under the Award. Respondent must continue to search, within both
MSHA and OSHA (as well as other parts of DOL, with the agreement of
the Union and Hershfield), for an appropriate GS-14 position. Such
a position need not be only within the GS-110 Economist series, but
it must be one for which the Grievant's skills and experience make
him at least minimally qualified. Moreover, the Respondent's
officials should consult with the Union and the Grievant during the
search process, so that questions can be answered and
misunderstandings can be minimized.

4. Backpay

In her Award, the Arbitrator
directed the Agency "to make the Grievant whole retroactive to June
1, 2001 pursuant to the Back Pay Act, 5 U.S.C. 5596." The
Respondent argues before me that the payment of back pay to the
Grievant pursuant to the Award is not lawful under the Back Pay
Act. This argument, however, was specifically raised by the
Respondent in its exceptions to the Award, and was rejected by the
Authority.

In that regard, the Authority
stated that it has long held that an award of back pay under the
Back Pay Act is authorized only when an arbitrator finds that: (1)
the aggrieved employee was affected by an unjustified or
unwarranted personnel action; and (2) the personnel action has
resulted in the withdrawal or reduction of the grievant's pay,
allowances or differentials. 59 FLRA at 563. The Authority
further stated that under its precedent, an agency's breach of both
a settlement agreement and a collective bargaining agreement
constitutes an unjustified or unwarranted personnel action under
the Back Pay Act. It noted that "the Arbitrator expressly found
that the Agency's failure to select the grievant constituted an
'unjustified personnel action [that] resulted in the reduction of
pay[.]' Award at 15. Therefore, the Award satisfies the
requirements of the Back Pay Act. . . ." Id.

Under these circumstances, it is
inappropriate to raise this same issue in the unfair labor practice
forum. See FAA,54 FLRA at 483-85 and cases cited above. While the Respondent
adds some new wrinkles to its Back Pay Act argument, such as its
inability to pay the Grievant until he is actually promoted, this
does not alter the fact that the Authority upheld the legality of
the Award directing the Respondent to pay back pay to Hershfield
promptly.

Even assuming it would be
appropriate to consider the Respondent's position in this matter,
the evidence does not support the Respondent's contentions that it
is unable to pay Mr. Hershfield the rquired back pay until he is
actually placed in a GS-14 position. The Respondent citesUnited States v. Testan,
424 U.S. 392 (1976), in support of its position. The General
Counsel, however, correctly points out thatTestanwas decided prior to the
enactment of the Civil Service Reform Act of 1978 (CSRA), which had
significant ramifications for the Back Pay Act. InBrown v. Secretary of the Army, 918 F. 2d 214, 219-20 (D.C. Cir. 1990), the Circuit Court
recognized that the CSRA included within "unjustified and
unwarranted personnel action" the "omission or failure to take an
action or confer a benefit" in non-discretionary promotions, such
as in this matter. See also Edwards v.
Lujan, 40 F.3d 1152, 1154
(10thCir. 1994),
adoptingBrown'sinterpretation that the Back Pay Act covers illegal refusals
to make mandatory promotions.

Further, neither 5 C.F.R. § 550.804
nor FPM 296-33 supports the Agency's contentions. As found by the
Authority, the Arbitrator's Award in this matter is consistent with
the Back Pay Act. FPM 296-33 contains instructions on how to
prepare personnel actions. The Respondent presented no evidence
that it sought or received guidance from the Office of Personnel
Management as to how to pay back pay to Mr. Hershfield, or that OPM
supports its contentions on this issue.

Therefore, I find that the
Respondent's failure to pay

the Grievant back pay in accordance
with the Arbitration Award is a violation of section 7116(a)(1) and
(8) of the Statute.

5. Remedy

As requested by the General
Counsel, I agree that an appropriate notice should be signed by the
Secretary of Labor and posted throughout the bargaining unit for
which the Charging Party is the exclusive representative, in all
places where notices to unit employees are customarily posted.
See U.S. Department of Transportation,
Federal Aviation Administration, Standiford Air Traffic Control
Tower, Louisville, Kentucky, 53 FLRA 312,
322 (1997);U.S. Department of Justice,
Federal Bureau of Prisons, Office of Internal Affairs, Washington,
D.C., 55 FLRA 388, 394 (1999).
Particularly since the Respondent here has tried to restrict its
affirmative responsibilities to MSHA alone, it is necessary to have
the notice signed by the Secretary.

It is worth repeating here that the
Respondent voluntarily accepted the obligation on February 5, 2001,
to give the Grievant priority consideration for the next GS-14
Economist position. The Grievant and the Union have been seeking
to have the Respondent fulfill its obligation ever since. On May
21, 2003, the Arbitrator ordered the Respondent to pay the Grievant
back pay retroactive to June 1, 2001, and the Respondent has been
avoiding that obligation ever since. Testimony at the hearing
indicated that Union officials at times advised Agency officials of
positions that the Grievant might qualify for, and that the Union
would get no response. Moreover, at the risk of stating the
obvious, the Agency's back pay liability continues to mount each
day it fails to promote the Grievant. It is in this context that I
seek a remedy that will, to the extent possible, make the Grievant
whole and ensure that the Respondent complies with the Arbitration
Award (i.e., promotes the Grievant to an appropriate GS-14 position
and pays him back pay in a timely manner). See Federal Aviation Administration, Airways Facilities
Division, Northwest Mountain Region, Renton,
Washington, 60 FLRA 819, 821
(2005).

With this goal in mind, the General
Counsel has requested, and I agree, that Respondent should make a
partial payment of back pay immediately upon this decision becoming
final. Thereafter, in order not to reward further delay on the
Respondent's part, I find that Respondent should continue to pay
the Grievant back pay annually until he is actually
promoted.

I further find it appropriate that
the Respondent be required to provide the Grievant and the Charging
Party a listing of all vacant GS-14 positions within the Department
of Labor, on a weekly basis. The Arbitrator's Award directed the
Respondent to promote him to the next appropriate GS-14 position
"in MSHA, OSHA or any other Department of Labor agency agreed upon
by the Parties." As previously noted, this requires the Respondent
to search in both MSHA and OSHA for an appropriate position; it
also allows for the possibility of promoting the Grievant to a
position in another DOL agency, with the mutual consent of all
parties. Given the Respondent's failure to keep the other parties
informed of available positions or even to consider the Grievant
for some positions up until now, the best way to enable the parties
to communicate regularly on these issues is to require the
Respondent to provide a list of all GS-14 vacancies regularly. I
do not, however, believe it is appropriate to require the
Respondent to explain, absent a request from the Union, why the
Grievant is or is not qualified for every GS-14 position. Such a
requirement would potentially engage Agency officials in
time-consuming paperwork concerning positions that the Grievant has
no interest in.

Based on the above findings and
conclusions, I conclude that the Respondent violated section
7116(a)(1) and (8) of the Statute by failing to comply with the
Arbitration Award as required by 5 U.S.C. §§ 7121 and 7122, and I
recommend that the Authority issue the following Order:

ORDER

Pursuant to § 2423.41(c) of the
Rules and Regulations of the Federal Labor Relations Authority and
§ 7118 of the Federal Service Labor-Management Relations Statute
(the Statute), it is hereby ordered that the U.S. Department of
Labor (the Agency), shall:

1. Cease and desist
from:

(a) Failing to comply with the
final and binding Award of Arbitrator S.R. Butler dated May 21,
2003 (the Award), by failing to search in MSHA and OSHA, as well as
in any other Department of Labor agency on which the Agency and the
American Federation of Government Employees, Local 12, AFL-CIO (the
Union), agree, for the next appropriate GS-14 position available to
promote David Hershfield (the Grievant).

(b) Failing to pay back pay to
the Grievant at the appropriate GS-14 rate retroactive to June 1,
2001.

(c) In any like or related
manner, interfering with, restraining or coercing its employees in
the exercise of their rights assured by the Statute.

2. Take the following affirmative
actions in order to effectuate the purposes and policies of the
Statute:

(a) Provide to the Grievant and
the Union, on a weekly basis, a listing of all vacant GS-14
positions within the Department of Labor.

(b) In accordance with the
Award, promote the Grievant, retroactively to June 1, 2001, to the
next appropriate GS-14 position available within MSHA, OSHA or any
other Department of Labor agency agreed upon by the
parties.

(c) In accordance with the Back
Pay Act, 5 U.S.C.

§ 5596(b), and the Award, pay to the
Grievant back pay at the appropriate GS-14 rate retroactive from
June 1, 2001 to the date this Order becomes effective, and
thereafter on an annual basis until the Grievant is promoted to a
GS-14 position.

(d) Post at its facilities,
where bargaining unit employees are employed, copies of the
attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be
signed by the Secretary of Labor, and shall be posted and
maintained for 60 consecutive days thereafter in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps
shall be taken to ensure that such Notices are not altered, defaced
or covered by any other material.

(e) Pursuant to § 2423.41(e) of
the Rules and Regulations of the Authority, notify the Regional
Director of the Washington Regional Office, Federal Labor Relations
Authority, in writing, within 30 days of the date of this Order, as
to what steps have been taken to comply.

Issued, Washington, DC, February 17,
2006.

_______________________________

RICHARD A. PEARSON

Administrative Law Judge

NOTICE
TO ALL EMPLOYEES

POSTED BY ORDER OF

THE FEDERAL LABOR RELATIONS
AUTHORITY

The Federal Labor Relations
Authority has found that the U.S. Department of Labor violated the
Federal Service Labor-Management Relations Statute (the Statute)
and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY OUR EMPLOYEES
THAT:

WE WILL NOTrefuse to comply with the final and binding Award of
Arbitrator S.R. Butler dated May 21, 2003 (the Award), by failing
to search in MSHA and OSHA, as well as in any other Department of
Labor agency on which the Agency and the American Federation of
Government Employees, Local 12, AFL-CIO (the Union), agree, for the
next appropriate GS-14 position available to promote David
Hershfield (the Grievant).

WE WILL NOTrefuse to pay back pay to the Grievant at the appropriate
GS-14 rate retroactive to June 1, 2001.

WE WILL NOT, in any like or related manner, interfere with, restrain or
coerce our employees in the exercise of their rights assured by the
Statute.

WE WILLprovide to the Grievant and the Union, on a weekly basis, a
listing of all vacant GS-14 positions within the Department of
Labor.

WE WILLcomply with the Award by promoting the Grievant retroactively
to June 1, 2001, to the next appropriate GS-14 position available
in MSHA, OSHA or any other Department of Labor agency agreed upon
by the Parties and to make the Grievant whole retroactive to June
1, 2001 pursuant to the Back Pay Act, 5 U.S.C. § 5596.

_______________________________

U.S. Department of Labor

Dated: ______________ By:
_______________________________

Secretary of Labor
(Signature)

This Notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by
any other material.

In reviewing the Grievant's
qualifications for several positions in OSHA that Hershfield was
not offered (including two positions in the same GS-343 series that
was later offered to him), Goodell testified that the Grievant did
not meet the minimum contracting requirements. Tr. 121.

The irony has not escaped me
regarding the shifting perspectives of the parties at different
stages of this case. Between February 1998 and August 2004,
Hershfield and the Union were pushing the Agency to give the
Grievant the broadest consideration possible in promoting him to a
GS-14 position, while the Agency repeatedly found reasons to select
other employees over him, or not even to consider him at all.
After twice being found to have committed unwarranted personnel
actions against the Grievant and having lost its appeal to the
Authority regarding the Arbitration Award, the Agency suddenly in
September 2004 gave Hershfield the benefit of every possible doubt
in evaluating his qualifications for a supervisory position; in
turn, the Grievant is now pleading how unqualified he is for this
job. Notwithstanding these facts, I find Hershfield's reluctance
to take this supervisory position far more rational and credible
than the Agency's newfound confidence in the Grievant's ability to
supervise an office of management analysts.